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STATUS REPORT ON RECENT CAV CASES

[Posted April 1, 2009] No; the Court of Appeals hasn’t suddenly decided not to issue any opinions recently. In fact, the judges are cranking them out at a good clip. But my day job has had me far busier than usual these days, so I have a considerable amount of catching up to do. I won’t be able to achieve that until this weekend at the earliest. But rather than leave you empty-handed for now, here’s a review of a short opinion released yesterday.

Criminal lawRoberson v. Virginia Beach brings me back to my days in the Virginia Beach City Attorney’s Office. Unlike the Commonwealth’s Attorney, the City Attorney handled almost no criminal litigation; the office existed to handle the legal business of the largest municipal corporation in the state. That meant drafting contracts, litigating tort and tax claims, advising public bodies and officials, and managing the legal aspect of public procurement. But back in the 90’s when I was there, the office also prosecuted misdemeanors written under the City Code. That function has since been handed over to the Commonwealth’s Attorney.

As a consequence of that, I prosecuted a fair number of DUI’s.(In the process, I saw enough accident scene photographs to ensure that I would never drive drunk; but that’s another sermon.) And I always made it clear that I was in court on behalf of the City. I recall one instance in which the defense lawyer continually reverse-personified me in oral argument as “the Commonwealth.” I advised the court, with my tongue obviously in my cheek, “If Mr. Jones calls me ‘the Commonwealth’ one more time, I’m going to suggest that we step outside and settle this like men.”

But in this case, the difference is more than just a matter of local governmental pride; it is dispositive of this appeal. Roberson was charged with DUI, and the summons listed the prosecuting authority as the City. But in the space where the applicable Code section was to be listed, the officer wrote, “21-1/18.2-266.”Prosecutors and defense attorneys across the Commonwealth will recognize the latter number as the state DUI statute. The former is City Code section 21-1, which incorporates state DUI law into the City ordinance.

Roberson was convicted in circuit court. The sentencing order was styled “City of Virginia Beach v. Roberson,” but the body of it incongruously listed the state statute as the offense of which he was convicted. Roberson’s lawyer appealed, but he styled the appeal, “Roberson v. Commonwealth.”

Initially, the Court of Appeals looked at the two contrasting provisions and didn’t know whether Roberson had been convicted under the state statute or the local ordinance. It took the unusual step of remanding to the trial court, asking it to clarify its order in this regard. The trial judge wrote back, saying that Roberson had been convicted under the ordinance.

Now we have a problem. You see, if he was convicted under the ordinance, then the City, not the Commonwealth, is the proper (and indeed indispensible) party to respond to the appeal. Roberson’s appeal seemed to be headed for defeat at the January 15, 2009 oral argument. But his lawyer had an inspiration: He went back to the trial court the day before the CAV argument (on the 30th day after the clarification), saw a different judge, and secured entry of an order vacating the original judge’s order, and convicting Roberson under the statute instead of the ordinance. He got a certified copy of the order and brought it with him the next day to oral argument. Problem solved.

Ummm, . . . not really. Instead of avoiding ethical hot water for joining the wrong appellee in the appeal, this move bought the lawyer plenty more, in the form of a scathing opinion that’s sharply critical of the attorney’s actions in doing this end-run around the original judge (not to mention our old pal Rule 1:1, and the Attorney General, who wasn’t present at the January 14 hearing). The opinion points out that the trial court lost jurisdiction of the case after 21 days (Rule 1:1), and resort to Code §8.01-428 (correction of clerical errors in judgments) isn’t permissible while the case is on appeal, unless the appellate court consents. Obviously, the lawyer hadn’t consulted the appellate court in advance. That meant that the January 14 order was a nullity, and left the original judge’s order still in place.

From there, it’s a foregone conclusion; since the City is a necessary party to the appeal, Roberson’s failure to join it means the CAV doesn’t have jurisdiction, so the appeal is dismissed. For those with a prurient interest in seeing blood and gore in appellate opinions, I’ll tell you that this one isn’t likely to satisfy your bloodlust; there are no four-letter Anglo-Saxon words here, and the court doesn’t overtly call anyone a crook. So how do I conclude that it’s scathing? Because the body of the opinion describes the lawyer by name; that’s how. There is a delicate protocol about appellate practice and appellate opinions. In an ordinary situation, the lawyer might be referred to as “appellant’s counsel,” but the court would never list his name; it would be wholly unnecessary. But the repeated mention of the lawyer’s name makes it clear to me that this panel is furious with what happened here. While this isn’t technically a sanction, or even the kind of order that will merit mention in local media, it’s extraordinarily noteworthy in appellate circles.